The following papers have been considered by the Court on this motion Papers Numbered Notice of Omnibus Motion 1 Affirmation in Response to Defendant’s Motion 2 Defendant’s Reply Affirmation 3 Defendant is charged with Offering a False Instrument for Filing in the Second Degree (Penal Law §175.30). The charges stem from defendant’s alleged conduct on April 22, 2019, at about 1:05 p.m., at 801 Axinn Avenue in Garden City, New York. Defendant’s motion is decided as provided herein. On May 21, 2019, the subject felony complaint was converted to an information pursuant to CPL 180.50(3). Contrary to the People’s contentions, the instant accusatory instrument is in no way a misdemeanor complaint (People’s Affirmation at 13). In fact, the court, in issuing the reduction order, specifically indicated that it was an information. As such, the accusatory instrument at bar and accompanying supporting deposition will be evaluated as an information. Defendant moves to dismiss the information as facially insufficient and defective. An information is sufficient on its face when it (1) substantially conforms to the requirements of CPL 100.15, (2) sets forth allegations which “provide reasonable cause to believe that the defendant committed the offense charged” and (3) contains non-hearsay allegations which “establish, if true, every element of the offense charged and the defendant’s commission thereof” (CPL §100.40[1]; People v. Alejandro, 70 NY2d 133 [1987]). CPL 100.15 provides that every accusatory instrument must contain two separate parts: (1) an accusatory portion designating the offense charged; and (2) a factual portion containing evidentiary facts which support or tend to support the charges stated in the accusatory portion of the instrument. The facts set forth must provide reasonable cause to believe that the defendant has committed the crime alleged in the accusatory portion of the charging instrument (People v. Dumas, 68 NY2d 729 [1986]; People v. Strafer, 10 Misc 3d 1072[A] [Criminal Court, Kings County 2005]). When these requirements are met, the information states a prima facie case and is sufficient (People v. Alejandro, 70 NY2d 133 [1987]). On a motion to dismiss for facial insufficiency, the court’s review is limited to whether or not the People’s allegations, as stated in the accusatory instrument and any supporting depositions, establish the existence of a prima facie case, even if those facts would not be legally sufficient to prove guilt beyond a reasonable doubt (People v. Jennings, 69 NY2d 103 [1986]; People v. Henderson, 92 NY2d 677 [1999]). In assessing the facial sufficiency of an accusatory instrument, the court must view the facts in a light most favorable to the People (People v. Vonancken, 27 Misc 3d 132[A] [App Term, 2d Dept, 9th & 10th Jud Dists 2010]; People v. Mellish, 4 Misc 3d 1013[A] [Criminal Court, NY County 2004]), without giving the accusatory instruments and supporting depositions an overly restrictive or technical reading (People v. Casey, 95 NY2d 354 [2000]). As previously noted, defendant is charged with Offering a False Instrument for Filing in the Second Degree (Penal Law §175.30) and not, as the People’s state, with Petit Larceny (Affirmation at 7, 12). Penal Law §175.30 provides: “[a] person is guilty of offering a false instrument for filing in the second degree when, knowing that a written instrument contains a false statement or false information, he offers or presents it to a public office or public servant with the knowledge or belief that it will be filed with, registered or recorded in or otherwise become a part of the records of such public office or public servant.” In pertinent part, the factual portion of the accusatory instrument, sworn to by Scott P Reilly, provides: “defendant did knowingly and willingly complete and offer Department of Motor Vehicles Form MV-44 (Application for Permit, Driver License, or Non-Driver ID Card) to the Department of Motor Vehicles office in Garden City, New York, which contained a false statement. Said defendant did check off a box indicating that he did not have prior license suspensions, when in fact he did. During a conversation with Department of Motor Vehicles Investigator Orllando and Senior Investigator Mattchia, the defendant admitted that the photos used to obtain both his current license and the previously suspended license were in fact both him. Your deponent knows this form was filed at said location based on an investigation and Supporting Deposition from Department of Motor Vehicles Investigator Kevin Herrera. The above allegations of fact are made by the Complainant herein on direct knowledge and/or upon and belief, with the sources of Complainant’s information and the grounds for belief being the facts contained in the attached SUPPORTING DEPOSITION(s) of: INVESTIGATOR KEVIN HERRERA.” Also attached to the accusatory instrument is the supporting deposition of Kevin Herrera, which states: “On 4/23/19 I was assigned the case of Leo Sclavos CID-254-391-101 DOB 6/19/50, whose image matched the image on the record of Leo Schavos CID-247-327-593 DOB 6/19/50. On 4/22/19, defendant entered the New York State Department of Motor Vehicles office in Garden (located at 801 Axinn Ave Garden City NY 11801, (Town of Hempstead) and completed and offered form MV-44 to renew his Class D driver’s license in the name Leo Sclavos DOB 6/19/50 CID-254-391-101. On said application, defendant was asked the following question; ‘Has your driver license, learner permit or privilege to drive a motor vehicle been suspended, revoked or canceled or has your application for a license been denied in this state or elsewhere in the name you provide on this form or any other name?’ Subject answered ‘no’ when in fact he did have a suspended class D license in the name Leo Sclavos CID-247-327-593 DOB 6/19/50. My investigation concluded that both identities belong to subject and he therefore made a false statement in regard to the aforementioned question on his application. I have been employed by the New York State Department of Motor Vehicles Division of Field Investigation for 6 years. As such, I have experience and received training in multiple identity investigations.” Based upon the foregoing, the court finds that the allegations in the accusatory instrument together with those contained in its accompanying supporting deposition, are wholly conclusory and insufficient to make out a prima facie case against the defendant for the crime charged. Specifically, in his supporting deposition, Investigator Herrera does not identify his basis for concluding that defendant is the person in the compared images or annex said images. Moreover, he has failed to annex any of the referenced documents to the accusatory instrument, including form MV-44, any documentation reflecting defendant had an alleged prior suspended license or the alleged prior license. Therefore, Investigator Herrera’s statements are unfounded hearsay. Further, Scott Reilly’s reference to a statement defendant allegedly made to other Investigators is likewise hearsay and, therefore, cannot provide the requisite proof for facial sufficiency. In addition, the People’s argument that the court should consider a noticed admission to DMV Investigators (id. at 14) that is not included in the four corners of the accusatory instrument or accompanying supporting deposition, is flatly rejected. Given the above, defendant’s motion is granted, and the instant accusatory instrument is hereby dismissed. The remainder of defendant’s motion is denied as moot. This constitutes the decision and order of the court. So Ordered. Dated: November 19, 2019
